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Family Law FLASHPOINTS October 2024

Donald C. Schiller, Schiller DuCanto & Fleck LLP, Chicago, Lake Forest, & Wheaton
Michelle A. Lawless, Law Office of Michelle A. Lawless LLC, Chicago
312-641-5560 | E-mail Donald Schiller | 312-741-1092 | E-mail Michelle Lawless

Trial Court Reversed for Failing To Rule on Issue of Temporary Support Request as Part of Petition for Order Of Protection

In an independent action for an order of protection, the trial court in Martinez v. Leon, 2024 IL App (1st) 231058, issued an emergency order of protection and subsequently a plenary order of protection, but denied the petitioner’s request for temporary support from the respondent with whom she shared a child. The trial court denied the request twice, the first time because the court believed the respondent did not have adequate notice of the proposed support order and the second time because it believed the Domestic Relations Division (Cook County) was the appropriate division to deal with the support issue. 2024 IL App (1st) 231058 at ¶1. The petitioner appealed, and the appellate court reversed. The Illinois Domestic Violence Act of 1986 (IDVA) 750 ILCS 60/101, et seq., lists several remedies that may be included in an order of protection. One of those remedies is temporary child support. Even if the trial court does not customarily rule on child support issues, under the IDVA, it has the authority to do so when requested as a remedy along with an order of protection. Further, the court only has the discretion to not decide “contested” support issues, meaning it must decide any uncontested issues of temporary support, and if the issue of temporary support is contested, the trial court must still decide the issue if it is necessary to protect a child from abuse, neglect, removal, concealment, or separation. 2024 IL App (1st) 231058 at ¶25. Because the order of protection in this matter was entered by default and, therefore, uncontested, the trial court did not have the discretion to decline to rule on the requested remedy. 2024 IL App (1st) 231058 at ¶26. The appellate court further stated that whenever a trial court exercises discretion to not rule on a request for temporary child support, it has a mandatory duty under §§212(b) and 212(c) of the IDVA to reserve the issue and transfer the matter to the appropriate court or division to rule on the issue. If the court is unable to effectuate a transfer for any reason, it must decide the issue itself. 2024 IL App (1st) 231058 at ¶28.

Under Supreme Court Rule 102, Personal Service of Respondent Effectuated Via Zoom Court Appearance with Respect to a Claim for Temporary Child Support in Connection with a Petition for Order of Protection 

In an independent action for a petition for order of protection, the trial court in Martinez, supra, declined to rule on the petitioner’s request for temporary child support (see above). The court analyzed whether the trial court satisfied the notice requirements for a default plenary order of protection that included a request for temporary child support. 2024 IL App (1st) 231058 at ¶23. The court noted that while most remedies under the IDVA may be ordered if the respondent has notice of the underlying petition, temporary child support requires actual notice, which includes personal service or the entering of a general appearance. 2024 IL App (1st) 231058 at ¶24. In this case, the record reflected that the respondent was personally served at the Zoom court date, which ultimately set the hearing on the underlying petition. Id. Under Supreme Court Rule 102, a respondent who appears for a remote proceeding and is read the operative terms of the order of protection filed against him or her is deemed to have been personally served with process. Because the respondent appeared on the date that the court set a hearing date on the petition for plenary order of protection, and because he subsequently failed to appear on the following hearing date, the IDVA authorized the trial court, by the entry of the default on the petition for plenary order of protection to deal with temporary child support. No additional notice to respondent was required. Id.

For more information about family law, see ADOPTION LAW (IICLE®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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